1501751 (Migration)

[2015] AATA 3930

1501751 (Migration) [2015] AATA 3930 (23 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Khoa Dieu Quyen Nguyen

CASE NUMBER:  1501751

DIBP REFERENCE(S):  BCC2014/3214072

MEMBER:Stuart Webb

DATE:23 December 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 23 December 2015 at 5:20pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 January 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant no longer met subclauses 573.223(1A) or 573.231 and had not complied with Condition 8516. The delegate noted that the applicant had been enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas, but had ceased enrolment in this course and enrolled in vocational courses The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 7 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented at the hearing. The applicant provided a copy of the delegate’s decision to the Tribunal.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(b) - non-compliance with conditions

6. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 is attached to the applicant’s visa. This condition requires:

   The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

7. The applicant arrived in Australia in August 2013. The applicant had been initially enrolled in an English language course, leading into a Diploma of Business and a Bachelor of Business course at Victorian University. She ceased her enrolment in English at Victoria University and enrolled in a Certificate III in EAL at ALTEC. She later enrolled in management courses at the vocational level. On 2 December 2014 the applicant enrolled in a Bachelor of Business (Management) course at Cambridge International College (CIC). The applicant confirmed this study history.

8. The applicant did not commence her principal course, the Bachelor of Business as she did not complete the initial English course or commence the pre-requisite Diploma of Business course. Her enrolment in her courses, including the principal course of a type specified for Subclass 573 visas was cancelled on 1 May 2014.  On 1 December 2014 the Department sent a Notice of Intention to Consider Cancellation (NOICC) to the applicant. The applicant provided a submission to the Department on 9 December 2014.

9. The applicant provided evidence to the Tribunal that the letter of offer from CIC was made on 10 November 2014. This would comply with that provision of 273.231 that the applicant have an offer of enrolment in a  in a principal course specified for 573 courses when the delegate sent the applicant the NOICC. The applicant had, until then, not been compliant with the regulations.

10. The Tribunal considers that she had not been enrolled in a principal course of a type specified for Subclass 573 visas for around 5 months. This is in breach of condition 8516 that she continues to satisfy the primary criteria for the grant of a visa. As the applicant was no longer an eligible higher degree student after 1 May 2014 she no longer satisfied the primary criteria set out in subclause 573.223(1A) of Schedule 2 to the Regulations. The applicant was not enrolled in nor had an offer in a in a principal course specified for 573 courses from May 2014 until November 2014. Cl.573.231 requires that an applicant be in enrolled in, or is the subject of a current offer of enrolment in a principal course specified for 573 courses. The applicant did not meet this criterion for these 5 months.

11. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

12. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

13. The applicant provided the following submission to the Department.

    I am writing this letter to provide the explanation for my current study status.

    I have studied English at Victoria University for about one year but my English level couldn't improved much and I couldn't pass the English requirements for the Diploma course at Victoria Uni. After a long time of studying English at VU without much improvement, I decided to change to another English school which I found better for me in term of study environment and my abilities. Once Victoria Uni cancelled my English course they also canceled all my further studies at VU which are diploma and bachelor degrees. During my English course at Australian Learning Training and Education Centre (ALTEC) I got an offer from Zarah Institute for my diploma program and another offer from Cambridge International College (CIC) for my bachelor degree. Since VU cancelled all my courses, I accepted the offer from Zarah Institute for my diploma course in business. For the bachelor program, my intentions were to finish my English level first, then enroll to the diploma program; once enrolled the diploma, I will apply for my bachelor degree. I should have not been waiting for a long time like that to accept the offer from Cambridge for my bachelor degree. Recently, I have received the COE from CIC for my principal course bachelor of business management that I wanted to study from the first day. I believe this pathway of my study is the most suitable way for me because it fits my personal interests, abilities and financial plans. I hope my explanations will please you and will allow me to continue my study in Australia. I have enclosed the COE from CIC for your convenience. My apologies for my mistake that put me into this trouble. If you have any question about my case please let me know.

14. The Tribunal discussed the applicant’s study history. She started English at Victoria University (VU), but left because it was too difficult. She received a release form, having originally sought to leave in February 2014. The applicant stated she wanted to start an English course. The applicant provided evidence of the release after it was permitted after an appeal. The Tribunal noted that the applicant stated she wanted to study electronics to VU. The applicant stated this was true, however because of the delay in gaining a release she could not commence those studies. The applicant went and studied English at ALTEC, with subsequent enrolments in a Cert IV in Business and Diploma of Management at Zarah. The applicant stated she enquired about these courses in September 2014[1] and enrolled[2] in the courses on 27 November 2014. The applicant provided evidence her enquiries and enrolment to the Tribunal.

    [1] AAT Folios 47-50

    [2] AAT Folios 37-42

15. The applicant stated that she had also contacted Cambridge International College (CIC). Evidence before the Tribunal shows that the applicant provided an application form for Bachelor of Business (Management) course to CIC on 30 October 2014[3]. A letter of offer was then sent to the applicant on 10 November 2014, an electronic copy was sent to the applicant and shown to the Tribunal at the hearing. The applicant stated that at that point in time she did not have the money to pay, but that financial situation was resolved by the end of November and she completed a written agreement with CIC on 2 December 2014. This was the day after the NOICC was sent by the Department.

    [3] AAT Folios 51-53

16. The evidence of the applicant before the Tribunal demonstrates that the applicant was seeking to enrol in the CIC Higher Education course prior to the sending of the NOICC, and that she had an offer in a Higher Education course on 10 November 2014. As discussed with the applicant, if she had paid the fee in that time this issue would likely not arisen.

17. The applicant has a concerning education history, with gaps in her studies, and leaving the substantive course for an English course, with no further actual enrolment in any substantive course until November 2014. The courses that the applicant has chosen are in the original field of studies, with business and management studies of the same nature as her previous enrolments.

18. The applicant has studied during this period. The Tribunal had some concern with the applicant’s aptitude for English, given she has a current IELTS assessment of 4.5 and the CIC course requires her to demonstrate an English score of 6.0 or equivalent. The applicant stated her English had improved and she was confident that she would be able to meet that requirement by the time it was required. The applicant stated that Zarah had tested her and permitted her to study the courses she was enrolled in.

19. The applicant stated her parents were not aware of her circumstances. They had kept sending her money, she has been saving it for when she could go and study her course.

20. The Tribunal notes that but for the payment of money in November 2014 the applicant would not have been in this situation. She had been in the process of arranging these enrolments when the NOICC was sent to her. She did not seek enrolment in the CIC course because of the NOICC as she had already sought and received the offer well before the NOICC was sent.

21. There are concerns with the way the applicant has gone about her enrolments, but the applicant impressed the Tribunal as a genuine student, with an intention to study at the higher level. It may take a little longer than initially thought, but the applicant was confident she would get the education outcome she is seeking.

22. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

23. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Stuart Webb
    Member